Monthly Archives: March 2021

When will employers be required to pay increased prevailing wage levels?

The DOL wage rule that would increase prevailing wage levels for certain employment-based immigrant visas and H-1B and E-3 nonimmigrant visas has been delayed until May 14, 2021. On March 22, 2021, the Department of Labor published a proposed rule that would further delay the rule by 18 months until November 14, 2022.

Background

Employers are required to pay H-1B workers the greater of “the actual wage level paid by the employer to all other individuals with similar experience and qualifications for the specific employment in question,” or the “prevailing wage level for the occupational classification in the area of employment. The wage levels are to ensure that H-1B workers are paid at the same levels as U.S. workers to protect against the replacement of U.S. workers by lower-cost foreign labor. The prevailing wage levels used in the H-1B (and H-1B1 and E-3) specialty occupation programs are the same used in PERM programs.

DOL originally published a version of the rule in October that was immediately effective. The Trump administration’s DOL argued that the new rules were necessary to combat the economic effects of the COVID-19 pandemic, which caused increased unemployment in some industries. The rule was quickly met with court challenges, with the U.S. District Court for the Northern District of California ultimately finding that the rule was in violation of the Administrative Procedures Act requiring public notice and comment periods for proposed rule changes.

In January, a new final rule was published with an effective date of March 14, 2021, but President Biden signed a Regulatory Freeze Pending Review Memorandum on January 20, 2021, postponing any “midnight” rules implemented in the final days of the previous administration. As a result, the DOL proposed a 60-day delay. On March 12, 2021, DOL published a final rule that set the effective date at May 14, 2021, but noted that a comprehensive review was being undertaken and a further delay was being considered. The final rule also removed the term “aliens” in the title, to read “immigrants and non-immigrants” instead.

On March 22, 2021, DOL published a proposed rule that would delay the effective date by eighteen months, along with all corresponding transition dates. The comment period closes on April 21, 2021.

Implementation TImeline

On March 12, 2021, DOL issued a final rule delaying the effective date of the rule on the computation of prevailing wage levels until May 14, 2021. The proposed rule issued on March 22, would further delay the timeline for implementation, including all of the transitional stages proposed by the rule. If finalized, the rule would delay the effective date until November 14, 2022, along with delays for all of the transition dates until January 1, 2024, January 1, 2024, January 1, 2025, and January 1, 2026.

If the proposed rule is finalized:

• The current prevailing wage determination percentiles will remain in effect until December 31, 2022
• Starting January 1, 2023, the prevailing wage will be 90% of the new wage determination methodology percentiles for each level
• Starting January 1, 2024, the prevailing wage will be 100% of the new wage determination methodology percentiles for each wage level

However, that does not apply if the individual is a beneficiary of an approved I-140 (filed as of October 8, 2020), or otherwise eligible to extend their H-1B status beyond the typical six-year limit, but because of statutory limits, cannot be granted immigrant status. If the proposed rule is finalized, these transition stages would apply to the H-1B employees on track for an employment-based green card with an approved I-140:

• The current prevailing wage determination percentiles for each wage level will remain in effect until December 31, 2022
• From January 1, 2023, through December 31, 2023, the prevailing wage would be 85% of the new wage determination methodology percentiles for each wage level
• From January 1, 2024, through December 31, 2024, the prevailing wage would be 90% of the new wage determination methodology percentiles for each wage level
• From January 1, 2025, through December 31, 2025, July 1, 2023, the prevailing wage would be 95% of the new wage determination methodology percentiles for each wage level
• Starting January 1, 2026, the prevailing wage would be 100% of the new wage determination methodology percentiles for each wage level

Charlie Oppenheim, Chief of the Visa Control and Reporting Division at the Department of State, has now moved his monthly check-ins to a more accessible format: YouTube Live! This month he shared a number of predictions on employment-based and family-based green card numbers, as well as how the Visa Bulletin will shift over the coming months. Below we have summarized some of his predictions.

• EB-1 for China and India will remain current throughout the remainder of the year, barring any extraordinary spikes in demand.
• Unused 1^st preference numbers will be reallocated to 2^nd preference.
• EB-3 is moving rapidly for China and India because there are fewer applicants in EB-3 who are ready to be processed immediately so that date is advanced more quickly to increase demand and increase EB-3 applications ready to be fully adjudicated.
• There was a “dramatic movement” in India EB-2 in April, predicting rapid movement in May as well.
• Last year there were approximately 122k unused family numbers. Employment for a given year is a minimum of 145k. DOS added 122k to 145k to get the 262k limit for this year.
• DOS predicts that there will be at least that many unused numbers this year, maybe more which is why they estimate a 275k limit for next year.
• EB-2 and EB-3 horizontal and vertical spillover is outlined as follows. If employment 2^nd preference category limit is 70,000. The Chinese and Indian limits might be (for example) 5,000. Once those countries are subtracted from the 70,000 limit, there would be 60,000 remaining. DOS then estimates how many of those will be used. If DOS estimates that 40,000 of those numbers will be used, they can reallocate them in strict priority date order to China and India. Those 20,000 extra numbers would go to the 20,000 earliest applicants. Oppenheim predicts that most of the additional allocation would be allotted to Indian applicants who would get to use those numbers first. It would be on a priority date order, without regard to the foreign state.

Question: How does the Visa Bulletin work? 

Charlie’s Response: The process is similar to creating your household budget. You need to allocate your income to your various expenses. In assessing final action dates, I assess the annual limits for each individual preference category, as well as foreign states, and budget an appropriate number of visas each month. How many remain? What is the annual limit? How many have been used? How many may be needed for emergency cases? What are the future expectations for our needs? How many unused numbers may come back from overseas posts? There are a lot of numbers, and there are a lot of other variables at play.

Question: How many employment visas may be unutilized for FY2021 based on COVID-based delays?

Charlie’s Response: It is not possible to comment on that at this time, but I will say last year, when similar constraints were underway, over 95% of the numbers available were used. Hopefully, this pattern will repeat this year and visa numbers allocated will be maximized.

Question: What does it mean to be pre-adjudicated with respect to pending EB cases? How many such cases exist? Why can’t they be immediately approved?  

Charlie’s Response: If the USCIS utilizes “dates for filing” dates on the visa bulletin. The applicants can file their AOS with the USCIS. The USCIS will pre-adjudicate the AOS application, but the USCIS will not finalize adjudicating the application until the final action date is advanced beyond the priority date.

Today DHS announced that it will withdraw the proposed rule, Affidavit of Support on Behalf of Immigrants. The proposed rule was published by the Trump Administration in October 2020 along with a series of other regulations that would increase hurdles to legal immigration. The Affidavit of Support serves as an agreement by sponsors to provide financial support to the sponsored immigrant(s) and acknowledge and accept liability for any costs of public benefits an immigrant receives during the effective period. The new rule would have put increased burdens on U.S. citizen and permanent resident sponsors to demonstrate how they will maintain their income, requiring Federal income tax returns for 3 years, credit reports, credit scores, and bank account information.

DHS Press Release

On March 19, 2021, the Department of Homeland Security (DHS) announced the withdrawal of a proposed rule, Affidavit of Support on Behalf of Immigrants.

By taking these steps, DHS aims to reduce barriers and alleviate burdens on American families who wish to sponsor individuals immigrating to the U.S. within the legal immigration system.

Summary
On Oct. 2, 2020, DHS published a notice of proposed rulemaking (NPRM), Affidavit of Support on Behalf of Immigrants, in the Federal Register. This proposed rule followed a presidential memorandum issued by former President Trump on May 23, 2019, Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens. The NPRM proposed to revise DHS regulations governing affidavit of support requirements under section 213A of the Immigration and Nationality Act.

On Feb. 2, 2021, President Biden issued Executive Order 14012, Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, revoking the 2019 presidential memorandum.

Consistent with the Feb. 2, 2021, executive order, DHS has withdrawn the Affidavit of Support NPRM.

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BREAKING NEWS: USCIS Announces Possible Reconsideration of H-1B Denials Under Rescinded Policy Memos

U.S. Citizenship and Immigration Services today announced it may reopen and/or reconsider adverse decisions on Form I-129, Petition for a Nonimmigrant Worker, made based on three rescinded policy memos. USCIS will generally use its discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.

On June 17, 2020, USCIS issued Policy Memorandum 602-0114, which officially rescinded two prior policy memoranda:

• HQ 70/6.2.8 (AD 10-24), “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements (Reference AFM Chapter 31.3(g)(16)),” issued, Jan. 8, 2010; and
• PM-602-0157, “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites,” issued Feb. 22, 2018.

On Feb. 3, 2021, USCIS issued Policy Memorandum 602-0142.1, which officially rescinded:

• PM-602-0142, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions’,” issued March 31, 2017.

Both Policy Memorandum 602-0114 and Policy Memorandum 602-0142.1 state that they apply to “any pending or new [H-1B Petitions], including motions on and appeals of revocations and denials of H-1B classification.”

A petitioner may request that USCIS reopen and/or reconsider adverse decisions based on the three rescinded policy memos by properly filing Form I-290B, Notice of Appeal or Motion, accompanied by the appropriate fee. In addition, USCIS has the discretionary authority to accept and consider untimely motions under certain circumstances as explained in the form instructions and permitted by regulation.

Petitioners who received an adverse decision on an H-1B petition based on the now-rescinded policy memoranda should consider whether there is time remaining in the validity period requested on the previously filed H-1B petition and the relevant labor condition application.

Additionally, USCIS recently extended through March 31, 2021, COVID-19 related accommodations that affect the deadlines for filing motions and appeals.

USCIS will generally process motions based on filing order, and consistent with current policy guidance.

USCIS reminds petitioners that even when a motion to reopen or reconsider is filed, accepted, and processed by USCIS, petitions will remain subject to all remaining and relevant eligibility requirements during any reopening or reconsideration.

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Consular Officials Can Waive Interviews for Visa Expirations Within 48 Months

Individuals may be able to renew their visas without an interview if they are reapplying for the same visa class that they previously held. Typically, interviews can be waived for individuals who are renewing unexpired visas or visas that expired less than one year ago. A recent Department of State announcement expanded that time frame to visas that have expired within a 48-month period, effective until December 31, 2021.

From the Department of State:

Secretary Blinken, in consultation with the Department of Homeland Security, has temporarily expanded the ability of consular officers to waive the in-person interview requirement for individuals applying for a nonimmigrant visa in the same classification.  Previously, only those applicants whose nonimmigrant visa expired within 24 months were eligible for an interview waiver.  The Secretary has temporarily extended the expiration period to 48 months.  This policy is in effect until December 31, 2021.  This change will allow consular officers to continue processing certain nonimmigrant visa applications while limiting the number of applicants who must appear at a consular section, thereby reducing the risk of COVID-19 transmission to other applicants and consular staff.  Travelers are encouraged to review the website of the nearest U.S. embassy or consulate for detailed information on what services are currently available as well as eligibility information and instructions on applying for a visa without an interview. 

Related Resources

• Interview Waiver Checklist: Are you eligible for a Drop Box appointment?
• Requesting an Expedited Consular Appointment
• National Interest Exceptions to H, L, and J Travel Bans

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Form I-944 No Longer Required

The Justice Department notified the Supreme Court that under the Biden administration, the changes made to the “public charge rule” under President Trump would no longer be defended in court. This follows an executive order President Biden signed in February that directed the Department of Homeland Security to conduct a comprehensive review of the rule. The Supreme Court agreed to the Biden administration’s request to dismiss the case, effectively putting an end to the public charge updates made under President Trump. On March 9, 2021, the Seventh Circuit lifted its stay and the U.S. District Court order vacating the public charge rule went into effect, so that USCIS immediately stopped applying the public charge rule to any pending applications and petitions.

The rule had been challenged frequently by litigation in courts around the U.S. On November 2, 2020, the Seventh Circuit issued an administrative stay, that dictated that all adjustment of status (Form I-485) green card filings must be filed with Form I-944 once again. Under the March 9 decision and the dismissal by the Supreme Court, USCIS will now be applying earlier public charge guidance.

Shortly after the dismissal by the Supreme Court, USCIS updated the public charge webpage to state:

USCIS is no longer applying the August 2019 Public Charge Final Rule. As a consequence, among other changes, USCIS will apply the public charge inadmissibility statute consistent with the 1999 Interim Field Guidance. In other words, USCIS is not considering an applicant’s receipt of Medicaid (except for long-term institutionalization at the government’s expense), public housing, or Supplemental Nutrition Assistance Program (SNAP) benefits as part of the public charge inadmissibility determination.

Applicants and petitioners are also instructed to not provide information or evidence related solely to the public charge rule, which includes Form I-944. However, the page also advises that in the interim, USCIS will not reject any Form I-485 based on the inclusion or exclusion of Form I-944, nor will it reject Form I-129 or I-539 based on whether the public benefits questions have been completed or left blank.

USCIS Updates for Cases in Progress

Applicants and petitioners should not provide information or evidence related solely to the Public Charge Final Rule. That means that applicants for adjustment of status should not submit Form I-944, Declaration of Self Sufficiency, or any evidence or documentation required by Form I-944 when they file their Form I-485. Applicants and petitioners for extension of nonimmigrant stay and change of nonimmigrant status should not provide information related to the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3).

If an applicant or petitioner already provided information related solely to the Public Charge Final Rule, and USCIS adjudicates the application or petition on or after March 9, 2021, USCIS will not consider any information that relates solely to the Public Charge Final Rule, including, for example, information provided on Form I-944, evidence or documentation submitted with Form I-944, or information on the receipt of public benefits on Form I-129 (Part 6), Form I-129CW (Part 6), Form I-539 (Part 5), and Form I-539A (Part 3). Any other information received will be evaluated consistent with the statute, regulations, and policies in effect at the time of adjudication.

If you received a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) requesting information that is solely required under the Public Charge Final Rule, including but not limited, to Form I-944, and your response is due on or after March 9, 2021, you do not need to provide that information. However, you do need to respond to the aspects of the RFE or NOID that otherwise pertain to the eligibility for the immigration benefit sought. If USCIS requires additional information or evidence to make a public charge inadmissibility determination under the statute and consistent with the 1999 Interim Field Guidance, we will issue another RFE or NOID.

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USCIS Interprets 12 Month Training Limit for F-1 Students at Same Degree Level

Recently, U.S. Citizenship and Immigration Services (USCIS) has taken a restrictive reading of 8 C.F.R. § 214.2(f)(10), issuing Requests for Evidence (RFEs) and denials for certain H-1B change of status petitions in which the foreign national used more than 12 months of combined Curricular Practical Training (CPT) and Optional Practical Training (OPT) at the same degree level. USCIS has interpreted that the 12-month limitation of practical training eligibility encompasses both CPT and OPT. If a foreign national has utilized CPT after already maximizing OPT work authorization at the same educational level (despite the degree program being at a different institution) USCIS has interpreted the individual to have failed to maintain a valid F-1 status.

While this appears to be a new interpretation of existing regulations, it does not yet appear that USCIS has applied the standard to all cases. Currently, USCIS appears to be targeting RFEs and denials for cases where the foreign national is enrolled in a second master’s degree at an institution that authorizes immediate CPT. In other words, these tend to be cases where a foreign national, upon completion of his or her OPT, continues working for the OPT employer by enrolling in an institution that will immediately authorize CPT to do so.

Although not failproof, it is recommended to obtain documentation from the student and the CPT-granting institution from the outset to substantiate the validity of the CPT, such as (but not limited to):

• Official copies of the student’s current transcript;
• Copies of degrees and/or certificates issued to the student showing course completion;
• Receipts for tuition payments, books, parking passes, and school supplies;
• Student’s school ID;
• Course syllabi or outlines for the student’s current program;
• Documentary evidence to show that the student was physically attending the courses in which s/he was enrolled (e.g. transportation receipts, confirmed transportation reservations, attendance records, etc.);
• Utility bills/rental contracts or other receipts documenting the student’s current residence;
• Confirmation as to the number of online/distance education class credits the student was/is enrolled in for the duration of his/her studies;
• A letter from the school, that establishes that the student has been engaged in a full course of study and is working towards program completion; and
• A letter from the school or the employer explaining how CPT is directly related to the academic program and how it will form an integral part of that program.

It may be advantageous to consular process the H-1B visa in the event that the USCIS approves the underlying petition but denies the change of status request.

USCIS today announced flexibilities for certain foreign students affected by delayed receipt notices for Form I-765, Application for Employment Authorization. These flexibilities apply only to applications received on or after Oct. 1, 2020, through May 1, 2021, inclusive.

USCIS has experienced delays at certain lockboxes in issuing receipt notices for Form I-765 for optional practical training (OPT) for F-1 students. These delays are a result of COVID-19 restrictions, a dramatic increase in filings of certain benefit requests, postal service volume and delays, and other external factors. While we have made progress in addressing the problem, we are extending the following flexibilities to assist certain applicants for OPT impacted by the delays.

14-month OPT Period Flexibilities

F-1 students may participate in up to 12 months of post-completion OPT, which must be completed within 14 months from the end of their program. Due to the delays at the lockbox, some applicants may only be eligible for a shortened period of OPT within that 14-month period. To allow F-1 students to complete the full period of requested OPT (up to 12 months), USCIS will allow the 14-month period to commence from the date of approval of the Form I-765 for applications for post-completion OPT.

Beginning today, USCIS will approve applications for post-completion OPT with validity dates reflecting the same amount of time originally recommended by the designated school official (DSO) from their school on the Form I-20, Certificate of Eligibility for Nonimmigrant Student Status.

F-1 students requesting post-completion OPT who receive an approval of Form I-765 for less than the full amount of OPT time requested (not to exceed 12 months) due to the requirement that the OPT be completed within 14 months of the program end date may request a correction of the EAD due to USCIS error. USCIS will issue a corrected EAD with a new end date, as requested, to cover the full amount of OPT time recommended in the original application.

Refiling Following Rejection

Applicants for OPT must file the Form I-765 during certain timeframes. However, we recognize that due to the lockbox delays, some applicants who timely filed Form I-765 for OPT and whose applications were later rejected are unable to timely refile within the required application timeframes.

USCIS will accept a refiled Form I-765 for OPT and STEM OPT as filed on the original filing date if:

• The original, timely filed application was received on or after Oct. 1, 2020, through May 1, 2021, inclusive; and
• USCIS subsequently rejected it.

Refiled applications must be received by May 31, 2021, for USCIS to treat the application as though filed on the original received date.

Applicants refiling a Form I-765 for OPT or STEM OPT do not need to obtain a new Form I-20 with an updated OPT recommendation from the DSO, as long as they originally submitted an application for post-completion OPT within 30 days of the DSO’s recommendation or an application for STEM OPT within 60 days of the DSO’s recommendation as required by the regulations.

Applicants refiling an application should include a copy of the rejection notice to facilitate review of the case.

Missing or Deficient Signatures

Applications with missing or deficient signatures are generally rejected at the lockbox. This policy remains unchanged. However, if the lockbox accepts a Form I-765 application for OPT or STEM OPT with a missing or deficient signature, USCIS will issue a Request for Evidence rather than deny the application, to give the applicant the opportunity to respond and provide the necessary signature or correct the deficiency. We encourage applicants filing Form I-765 to review the form instructions on our website to ensure their application is complete before filing it.

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